Patents and the Pandemic: Intellectual Property, Social Contracts, and Access to Vaccines (2021 Distinguished Roger L. Shidler Lecture)

Abstract

This Article is based on the 2021 Shidler Lecture, which was delivered at the University of Washington School of Law on November 4, 2021.

Through enormous public support and private initiative, biopharmaceutical firms have developed safe and effective COVID-19 vaccines in record time. These remarkable vaccines represent humanity’s best chance to end the devastating pandemic. But alongside the development and deployment of these vaccines have come difficult questions about ownership and access. Biopharmaceutical companies have patented many of the technologies underlying these vaccines, thus seeming to pit intellectual property rights against the interests of wide and rapid dissemination of these critical resources. While prevailing debates have been framed in the language of intellectual property, this Article suggests that contract principles can help break the impasse and lead to greater access to COVID-19 vaccines. This Article will explore the significant leverage that governments have in conditioning public research support on increased access to patented vaccines and related technical knowledge. It will also question whether biopharmaceutical firms have upheld their end of the patent bargain by adequately disclosing their technologies in exchange for exclusive rights. Finally, it will consider how changed circumstances may justify revisiting the bargain that developed and developing countries struck in strengthening global intellectual property standards. In a variety of ways, governments can leverage public funding, quid pro quos, and changed circumstances to increase access to patented vaccines, thus helping to improve health and welfare on a massive scale.

Keywords: COVID-19, coronavirus, global inequity, developed countries, patents, intellectual property, public funding, NIH, Moderna, Pfizer, Operation Warp Speed, quid pro quo, enablement, disclosure, tacit knowledge, WTO, TRIPS, TRIPS waiver, changed circumstances, South Africa

JEL Classification: F13, F63, H51, H57, I14, I15, I18, O31, O32, O34, O38